Seely v. Spencer
Supreme Court of Vermont
This was an audita querela, brought to set aside an execution issued on a judgement recovered against the plaintiffs by the defendant for the sum of $,'2043,48. On the trial of the issue joined upon the plea of not guilty, the plaintiffs offered and gave in evidence a receipt signed by the defendant,acknowledging to have received of Hosea Williams, Stephen Calkins, Seneca Hitt, Peleg JYichols and Savid Bartlett, the sum of $713,40, to answer on the execution, and agreeing…
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This was an audita querela, brought to set aside an execution issued on a judgement recovered against the plaintiffs by the defendant for the sum of $,'2043,48. On the trial of the issue joined upon the plea of not guilty, the plaintiffs offered and gave in evidence a receipt signed by the defendant,acknowledging to have received of Hosea Williams, Stephen Calkins, Seneca Hitt, Peleg JYichols and Savid Bartlett, the sum of $713,40, to answer on the execution, and agreeing that they should not be made liable on that or an alias execution, but the above sum should be to them a full and complete…
1Opinion of the Court
Prentiss, Ch. J.,
delivered the opinion of the Court.~-.It is well established, that the payment of part of a debt is no satisfaction of the remainder, although the creditor agrees to receive the sum paid, and gives a receipt, in discharge of the whole demand. In the case of Fitch vs. Sutton, 5 East, 232, Lord Ellenborough says, "it cannot be pretended that a receipt of part only, though ~e~pressed to be in full of all demands,must have the same operation as a release: acceptance of a less cannot be a satisfaction in law of a greater sum due: there must be some consideration for the…
2Cases cited2 opinions
- Henderson v. MooreSupreme Court of the United States · 1809
- Spencer v. WilliamsSupreme Court of Vermont · 1828
3Cited by1 opinion
- McAllister v. DenninSupreme Court of Missouri · 1858